26-1049. Depositions
A. At any time after charges have been signed as provided in section 26-1030, any
party may take oral or written depositions unless the military judge or court-martial
without a military judge hearing the case or, if the case is not being heard, an
authority competent to convene a court-martial for the trial of those charges forbids it
for good cause. If a deposition is to be taken before charges are referred for trial,
such an authority may designate commissioned officers to represent the prosecution and
the defense and may authorize those officers to take the deposition of any witness.
B. The party at whose instance a deposition is to be taken shall give to every
other party reasonable written notice of the time and place for taking the deposition.
C. Depositions may be taken before and authenticated by any military or civil
officer authorized by the laws of the state or by the laws of the place where the
deposition is taken to administer oaths.
D. A duly authenticated deposition taken on reasonable notice to the other parties,
so far as otherwise admissible under the rules of evidence, may be read in evidence or,
in the case of audiotape, videotape or similar material, may be played in evidence before
any military court in any case, or in any proceeding before a court of inquiry or
military board, if one or more of the following applies:
1. The witness resides or is not within the state in which the court or board is
ordered to sit, or is more than one hundred miles from the place of trial or hearing.
2. The witness by reason of death, age, sickness, bodily infirmity, imprisonment,
military necessity, nonamenability to process or other reasonable cause is unable or
refuses to appear and testify in person at the place of trial or hearing.
3. The present whereabouts of the witness is unknown.
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